Posted
by
Zonk
on Tuesday April 10, 2007 @12:42PM
from the not-so-fast-my-friend dept.

Microsoft Delenda Est writes "After ACT, a Microsoft front group, started claiming that the GPLv3 was legally 'risky' and could give rise to anti-trust liability, eWeek has published a rebuttal by Bruce Perens. Aside from the fact that IBM, HP, Red Hat, and a couple dozen corporate lawyers are watching over the creation of the GPLv3, there is already precedent that shows the GPL is unlikely to give rise to any significant liability — Daniel Wallace v. FSF. In that case, pro se litigant Daniel Wallace was all but laughed out of the courtroom for alleging the GPLv2 violates anti-trust law, and the GPLv3 clauses in question are simply clarifications and extensions of clauses in the GPLv2. Presumably, that is why the ACT neglected to cite any precedent substantiating their allegations."

You could argue that the restrictions that GPLv3 is intended to prevent -- web services running off GPL software without sharing code, for example -- are a marketplace effort to move open source licensing closer to BSD-style.

Thus, if the marketplace already views GPLv2 as too encumbered, it is unlikely that commercial code released in the future will be licensed under GPLv3, or that commercial entities will contribute to GPLv3 open-sourced projects. Before you argue that this is irrelevant, consider the amount of commercial code that has radically improved Linux in the past five years or so.

Perens thinks that with the Novell-MS deal, MS is granting rights to all their patents that may be used in a SUSE distribution for any use in any GPL software. And this under the current GPL 2.

... to Perens, the fact that Microsoft is currently giving to customers coupons that can be redeemed for a copy of SUSE Linux indicates that these coupons are intended to be redeemed for a copy of the copyrighted GPL 2 software.

"So, Microsoft is actively participating in distribution of the GPL2 software today, and must have assented to GPL 2 to do that, because any distribution without assent to GPL2 would be infringement. Under GPL 2, they have already given away the rights to use Microsoft patents that are applied in the Novell distribution, for any use in any GPL software, by anyone, forever," Perens said.

And those forks will have to be significantly better than the GPL3 originals if they are to last longer than a month or two. I can count the number of successful forks on one hand.

They will be significantly better for people who prefer GPL2 over GPL3.

That won't be the users, since GPL3 doesn't restrict them at all. So, a GPL2 fork of any GPL3 product will need to be technically better to attract the users. It's unlikely that anyone motivated to fork backward to GPL2 will be able to muster sufficient community resources to make such a thing better than the GPL3 version.

There is no practical way for [Linus] to contact all copyright holders to get approval for a switch in the license. The Linux kernel will always be GPL2.

Fortunately, it's not as big a problem as you believe. But how can the Linux kernel project, with its thousands of developers, change its license? We can't even reach them all, and some of those developers are dead and their estates don't know software licenses from driver's licenses. But changing the license is easier than most people think.

First, it's not a fundamental change: the intent of GPL 3 is that of GPL 2, the change is in the implementation. Given that, what would be required for such a change would be for Torvalds (or someone else) to publish his intent to start making releases with the new license, as a legal notice. A certain number of people would object, and they would have the right to require that their contributions be removed from the new release.

The kernel team has never been loath to replace code when necessary, and never slow to handle the job, no matter how large the item to be replaced. Just look at the replacement of Bitkeeper with "git", a big job that took a ground-up rewrite and yet was working in five weeks. So, code belonging to GPL3-objectors would be swiftly dealt with.

After some time passed, the release would happen under the new license, and life would go on. There is precedent for this, as Torvalds has already made two significant changes to the prelude to GPL2 on the kernel, publishing his intent and then making a release.

Bruce Perens has responded to the papers I wrote for ACT without having read them. He made the absurd statement to eWeek, repeated here, that the Daniel Wallace case "shows the GPL is unlikely to give rise to any significant liability." I was talking about GPLv3, not an earlier version and the Daniel Wallace case was based on a predatory pricing theory - not group boycott theory as I discussed. Different facts, different law, different result. It would be great if someone with some legal training look at this, if not Mr. Perens. They are at http://www.actonline.org/documents/ACT-GPLv3-Legal -Risks.pdf [actonline.org] and http://www.actonline.org/documents/GPLv3-License-o r-Contract.pdf [actonline.org].

Mr Wilder, had you sincrely wished to solve any problems with GPL3, there were avenues open to you including participation in the committees and use of the feedback process. But that's not your role here. Your employer is a lobbying front for Microsoft, a company that has a vested interest in spreading fear and doubt about GPL3.

I checked with Eben Moglen, general counsel of the Free Software foundation, before writing a rebuttal to the eWeek material. Moglen had seen your paper and did not consider it worth his time to respond.

I responded to your quotes in eWeek since they had already run in the press. I have no desire to propogate the rest of your material.

I think it would be helpful for you to debate your material with an attorney supporting GPL3, instead of me. Unfortunately, we have not yet found an attorney who sees sufficient merit in your work to find it interesting to engage you.

Richard's ideals are far different to yours. He believes that everyone and everyone should be able to use Free Software, without fear of harrassment. He believes that software patents are blatantly illegal, and bad for business. He believes that supporting proprietary formats is bad, or that taking the community's hard work, and modifying it outside of the terms of agreement of the GPL is bad, and worse, illegal (and it is). If you don't like the terms of GPL software, get your hands off it. Simple.

Good on him for his beliefs, and good on him for standing his ground for so long in the face of personal attacks such as above. I for one totally agree with Richard's views and beliefs, and will always support the FSF.

Big corporate entities like Microsoft don't want you to use FSF software, because then they lose:

1. Money2. Control

and they don't like this. Other big business (RIAA, MPAA) like Microsoft a lot, because it does their bidding (which happens to be against the rights and interests of the population I might add). The FSF does not endorse the tactics that the RIAA & MPAA use to control the populace, and therefore our software is untainted. Richard, in my humble opinion, rightly questions the validity of software patents - statistical evidence clearly shows that they hamper competition and development (sorry, can't remember the report, but it was in regards to the health of the database software industry in mainland US, as part of the EU trust vs Microsoft saga).

If you don't like Richard's viewpoints, fine, but many view his views as spot on, and laud them because they care for the community, not the minority corporate interests.

Ask yourself this question (and this is particularly pertinent to the US government) - why does corporpate interest have so much influence over government decisions, especially when corporations are not individuals and have no legal right to vote?